FIREARM LAWS

FIREARM LAWS IN THE PHILIPPINES

 In July 18, 1901, by authority of the United States, the Philippine Commission enacted Act No. 175, AN ACT PROVIDING FOR THE ORGANIZATION AND GOVERNMENT OF AN INSULAR CONSTABULARY AND FOR THE INSPECTION OF THE MUNICIPAL POLICE.Section 6 vested in the Chief of the Insular Constabulary the following authority over the distribution of firearms:

 Section 6. The Insular Chief shall prescribe for the Insular Constabulary suitable arms, uniform, and equipment and shall report to the Commission, through the Civil Governor, his action in this regard, together with a statement of the cost, to the end that appropriation may be made to defray the cost thereof. The guns, revolvers, and ammunitions needed to equip the insular and municipal police shall be purchased by the Insular Purchasing Agent on the order of the Chief of Insular Constabulary, by whom they shall be distributed to the provinces and municipalities as they may be needed. The Chief of the Insular Constabulary shall keep a record of the guns and revolvers distributed, by their numbers, to municipalities and provinces x x x.Firearms owned by the government are therefore be distributed by the Chief of the Insular Constabulary to the members of the insular and municipal police, with merely a record of the distribution being required.

Shortly thereafter, the Philippine Commission enacted on October 12, 1907, Act No. 1780, AN ACT TO REGULATE THE IMPORTATION, ACQUISITION, POSSESSION, USE, AND TRANSFER OF FIREARMS, AND TO PROHIBIT THE POSSESSION OF SAME EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF THIS ACT.Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy or otherwise acquire, dispose of, possess, or have the custody of any rifle, musket, carbine, shotgun, revolver, pistol, or air rifle, except air rifles of small caliber and limited range used as toys, or any other deadly weapon x x x unless and until such person, firm, or corporation shall secure a license, pay the license fee, and execute a bond and otherwise comply with the requirements of this Act and the rules and regulations issued in

executive orders by the Governor-General pursuant to the provisions of this Act x x x.But exempted therefrom the following government-owned firearms:

Section 16. The foregoing provisions of this Act shall not apply to firearms and ammunition therefor regularly and lawfully issued to officers, soldiers, sailors, or marines of the United States Army and Navy, the Constabulary, guards in the employ of the Bureau of Prisons, the police force of the City of Manila, provincial prisoners and jails when such firearms are in possession of such officials and public servants for use in the performance of their official duties.With the enactment of Act No. 2711, the “Revised Administrative Code of 1917″, the laws on firearms was integrated. The Act retained the authority of the Governor General provided in Act No. 1780 (CHAPTER 35 – Philippine Constabulary ARTICLE IV – Keeping of Firearms). Subsequently, the growing complexity in the Office of the Governor-General resulted in the delegation of his authority to the Chief of the Constabulary.Section 1 to 25 and Section 27 to 33 was repealed by Act 2711, section Final B, approved March 10, 1917, but it retained Section 26.

Section 26. It shall be unlawful for any person to carry concealed about his person any bowie knife, dirk, dagger, kris, or other deadly weapon: Provided, That this provision shall not apply to firearms in the possession of persons who have secured a license therefore or who are entitled to carry same under the provisions of this Act. Any person violating the provisions of this section shall, upon conviction in a court of competent jurisdiction, be punished by a fine not exceeding five hundred pesos, or by imprisonment for a period not exceeding six months, or by both such fine and imprisonment, in the discretion of the court.The 1917 Revised Administrative Code also retained the foregoing exemption:

Section 879. Exemption as to firearms and ammunition used by military and naval forces or by peace officers. – This article shall not apply to firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the Unites States Army and Navy, the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal presidents, and guards of provincial prisoners and jails, when such

firearms are in possession of such officials and public servants for use in the performance of their official duties.On January 21, 1919, Acting Governor-General Charles E. Yeater issuedExecutive Order No. 813 authorizing and directing the Chief of Constabulary to act on his behalf in approving and disapproving applications for personal, special and hunting licenses. This was followed by Executive Order No. 6114designating the Philippine Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives.Executive Order No. 215, issued by President Diosdado Macapagal on December 3, 1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove applications for personal, special and hunting license, but also the authority to revoke the same.The evolution of our laws on firearms shows the legislature’s tendency was always towards the delegation of power. The law delegated upon the Governor-General (now the President) the authority (1) to approve or disapprove applications of any person for a license to deal in firearms or to possess the same for personal protection, hunting and other lawful purposes; and (2) to revoke such license any time. Further, it authorized him to issue regulations which he may deem necessary for the proper enforcement of the Act.

In June 29, 1983, Presidential Decree No. 1866 was issued by then President Ferdinand E. Marcos in the exercise of his legislative power; it is the chief law governing possession of firearms in the Philippines. In exercise of its rule-making authority under Section 8 of P.D. No. 1866, the Chief of the Philippine Constabulary issued The Implementing Rules and Regulations of P.D. No. 1866.By virtue of Republic Act No. 6975, December 13, 1990, AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES, ended the existence of the Philippine Constabulary and the Integrated National Police and gave way to the creation of the Philippine National Police. The Philippine National Police (PNP) absorbed the Philippine Constabulary (PC), now the country’s police force that is national in scope and civilian in character. It is administered and controlled by the National Police Commission. With the effectivity of Republic Act No. 8551, otherwise known as the “Philippine National Police Reform and Reorganization Act of 1998,” the PNP was envisioned to be a community and service oriented Agency.Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latter’s licensing authority. Section 24 thereof specifies,

as one of PNP’s powers, the issuance of licenses for the possession of firearms and explosives in accordance with law. This is in conjunction with the PNP Chief’s “power to issue detailed implementing policies and instructions” on such “matters as may be necessary to effectively carry out the functions, powers and duties” of the PNP. Both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue guidelines. P.D. No. 1866 was later amended by R.A. No. 8294 and RA 9516. The Implementing Rules and Regulations of P.D. No. 1866 have also been amended by various issuances from the Chief PNP. Section 6 of R.A. No. 8294 transferred to the Department of Justice (DOJ) and Department of Interior and Local Government (DILG) the authority to issue implementing rules and regulations but none has been adopted as of today.

Executive Order (EO) 194, dated February 24, 2000, an edict issued by former President Joseph Estrada, any Filipino may own firearms provided that such are not used for war; a Filipino may own as many firearms as he or she may desire.In January 2003, then President Gloria Macapagal-Arroyo delivered a speech before the members of the PNP stressing the need for a nationwide gun ban in all public places to avert the rising crime incidents. She directed the then Chief of the Philippine National Police (PNP), Hermogenes E. Ebdane, Jr., to suspend the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR). Acting on President Arroyo’s directive, Ebdane issued the “Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence” issued on January 31, 2003. The Memorandum prescribes the guidelines in the implementation of the ban on the carrying of firearms outside of residence as provided for in the Implementing Rules and Regulations, Presidential Decree No. 1866, dated June 29, 1983, as directed by the President. It also prescribes the conditions, requirements and procedures under which exemption from the ban may be granted.Acting on President Arroyo’s directive, respondent Ebdane issued the assailed Guidelines quoted as follows:

“TO: All ConcernedFROM: Chief, PNPSUBJECT: Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence.DATE: January 31, 20031. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations.

2. General:The possession and carrying of firearms outside of residence is a privilege granted by the State to its citizens for their individual protection against all threats of lawlessness and security.As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or MR) are prohibited from carrying their firearms outside of residence. However, the Chief, Philippine National Police may, in meritorious cases as determined by him and under conditions as he may impose, authorize such person or persons to carry firearms outside of residence.3. Purposes:This Memorandum prescribes the guidelines in the implementation of the ban on the carrying of firearms outside of residence as provided for in the Implementing Rules and Regulations, Presidential Decree No. 1866, dated June 29, 1983 and as directed by PGMA. It also prescribes the conditions, requirements and procedures under which exemption from the ban may be granted.4. Specific Instructions on the Ban on the Carrying of Firearms:a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed.b. All holders of licensed or government firearms are hereby prohibited from carrying their firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees.5. The following persons may be authorized to carry firearms outside of residence.a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger.b. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days.c. All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration.d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms

while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person.e. Authorized members of the Diplomatic Corps.6. Requirements for issuance of new PTCFOR:a. Written request by the applicant addressed to Chief, PNP stating his qualification to possess firearm and the reasons why he needs to carry firearm outside of residence.b. Xerox copy of current firearm license duly authenticated by Records Branch, FED;c. Proof of actual threat, the details of which should be issued by the Chief of Police/Provincial or City Directors and duly validated by C, RIID;d. Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if photocopied; e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied;f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center, if photocopied;g. Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by Chief, Operations Branch, FED;h. NBI Clearance;i. Two (2) ID pictures (2″ x 2″) taken not earlier than one (1) year from date of filing of application; and j. Proof of Payment7. Procedures:a. Applications may be filed directly to the Office of the PTCFOR Secretariat in Camp Crame. In the provinces, the applications may also be submitted to the Police Regional Offices (PROs) and Provincial/City Police Offices (P/CPOs) for initial processing before they are forwarded to the office of the PTCFOR Secretariat. The processors, after ascertaining that the documentary requirements are in order, shall issue the Order of Payment (OP) indicating the amount of fees payable by the applicant, who in turn shall pay the fees to the Land Bank.b. Applications, which are duly processed and prepared in accordance with existing rules and regulations, shall be forwarded to the OCPNP for approval.c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1) year from date of issue.d. Applications for renewal of PTCFOR shall be processed in accordance with the provisions of par. 6 above.e. Application for possession and carrying of firearms by diplomats in the Philippines shall be processed in accordance with NHQ PNP Memo dated

September 25, 2000, with Subj: Possession and Carrying of Firearms by Diplomats in the Philippines.8. Restrictions in the Carrying of Firearms:a. The firearm must not be displayed or exposed to public view, except those authorized in uniform and in the performance of their official duties.b. The firearm shall not be brought inside public drinking and amusement places, and all other commercial or public establishments.”

Definition of a “firearm”The definition of a “firearm” through various statutes and issuances.

1. Under Act No. 1780, a firearm was defined as:Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy, or otherwise acquire, dispose of, possess, or have the custody of any rifle, musket, carbine, shot-gun, revolver, pistol, or air rifle, except air rifles of small caliber and limited range used as toys, or any other deadly weapon from which a bullet, ball, shot, shell, or other missile or missiles may be discharged by means of gunpowder or other explosive ; and it shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy, or otherwise acquire, dispose of, possess, or have the custody of any ammunition or detached parts for such weapons, unless and until such person, firm, or corporation shall secure a license, pay the license fee, and execute a bond and otherwise comply with the requirements of this Act and the rules and regulations issued in executive orders by the Governor-General pursuant to the provisions of this Act. The word “firearm” as used herein shall be interpreted to mean any and all of the weapons mentioned in this section, and the barrel of any one of same shall be considered a firearm.  2. Under Act No. 2711 (which repealed Act No. 1780), firearms include rifles, muskets, carbines, shotguns, revolvers, pistols and all other deadly weapons from which a bullet, ball, shot, shell or other missile may be discharged by means of gunpowder or other explosives; the term also includes air rifles except such as being a small caliber and limited range used as toys; the barrel of any firearm shall be considered a complete firearm for all the purposes hereof.3. Commonwealth Act No. 466, AN ACT TO REVISE, AMEND AND CODIFY THE INTERNAL REVENUE LAWS OF THE PHILIPPINES, follows the definition under Act No. 2711.Section 290. Definition of terms. — As used in this Chapter, the word “firearm” or “‘arm” includes rifles, muskets, carbines, shotguns, revolvers, pistols, and all other deadly weapons from which a bullet, ball, shot, shell, or other missile may

be discharged by means of gunpowder or other explosives. The term also includes air rifles coming under regulations of the Philippine Constabulary. The barrel of any firearm shall be considered a complete firearm for all the purposes hereof. The word “ammunition” shall mean loaded shell for rifles, muskets, carbines, shotguns, revolvers, and pistols from which a bullet, ball, shot, shell, or other missile may be fired by means of gunpowder or other explosives. The term also includes ammunition for air rifles mentioned elsewhere in this section. The words “explosive” and “explosives” shall mean gunpowders, powder used for blasting, all forms of high explosives, blasting materials, dynamite, fuses, detonators and detonating agent, smokeless powder, and any other chemical compound or chemical mixture that contains any combustible units or other ingredients in such proportion, quantities or packing that ignition by fire, by friction, by concussion, by percussion, or by detonator of all or any part of the compound or mixture may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on contiguous objects or of destroying life or limb.4. Presidential Decree No. 1866 codified the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or disposition of firearms, ammunition or explosives or instruments used in the manufacture of firearms, ammunition or explosives, and imposed stiffer penalties for its violation.  It does not, however, define the term firearm, instead, the Implementing Rules and Regulations of PD 1866 provide the definition, to wit:Section 1. Definition of Terms. – For purposes of Presidential Decree No. 1866 the following terms shall mean and be interpreted as hereunder defined;a. “Firearm” as herein used, includes rifles, muskets, carbines, shotguns, revolvers, pistols and all other deadly weapons from which a bullet, ball, shot, shall or other missile may be discharged by means of gunpowder or other explosives. The term also includes air rifles and air pistols not classified as toys under the provisions of Executive Order No. 712 dated 28 July 1981. The barrel of any firearm shall be considered a complete firearm.x x x5. Republic Act No. 8294, which amended PD 1866, does not define the term firearm but categorizes it into two: (1) low powered firearm such as rimfire handgun, .380 or .32 and other firearm of similar firepower; and (2) high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter, such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three.

The Authority to Categorize Air Rifles and Airsoft Guns as Firearms

Pursuant to the cited EO 712, the President, then exercising legislative powers and authority, delegated to the Chief of the Constabulary [now the Chief of the Philippine National Police (PNP)], the authority to determine whether certain air rifles/guns can be treated as toys or firearms. Under its Section 1, the Chief of the Philippine Constabulary is given the authority to prescribe the criteria in determining whether an air rifle/pistol is to be considered a firearm or a toy within the contemplation of Sec. 877 of the Revised Administrative Code.

Under this same authority, then PNP Chief, Director General Avelino Razon issued PNP Circular No. 11 on December 4, 2007. PNP Circular No. 11 requires that airsoft guns and rifles be given the same treatment as firearms and air rifles with respect to licensing, manufacture, and possession and transport limitations. In effect, this is the PNP Chief’s determination, by regulation, that airsoft guns and rifles are not simply considered toys beyond administrative regulation but, on the contrary, are considered as weapons subject to regulation. Based on this Circular, they are included under the term “firearms” within the contemplation of RA 7166, and are therefore appropriate subjects of COMELEC Resolution No. 8714 issued pursuant to this law.

Requirements for Possession of FirearmsThe Implementing Rules and Regulations of PD 1866, to wit:

Section 2. Manufacture, Sale, Acquisition or Possession of Firearm, Ammunition or Explosives – Any person or entity desiring to import, manufacture, deal in, receive, acquire, buy, sell, dispose of or possess any firearm, part of firearm, ammunition, explosives or machinery, tool or instrument used or intended to be used in the manufacture of any firearm, parts of a firearm, ammunition or explosives shall first secure the necessary permit/license/authority from the Chief of Constabulary, except in the case of application to manufacture firearms, ammunition or explosives, the corresponding permit/license shall be issued only with the prior approval of the President.With regard to the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR), Section 3 imparts:

Section 3. Authority of private individuals to carry firearms outside of residence.a. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or MR) are prohibited from carrying their firearms outside of residence.

b. However, the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize such person or persons to carry firearm outside of residence.c. Except as otherwise provided in Sections 4 and 5 hereof, the carrying of firearm outside of residence or official station in pursuance of an official mission or duty shall have the prior approval of the Chief of Constabulary.These provisions are issued pursuant to the general power granted by P.D. No. 1866 empowering the Chief of Constabulary to promulgate rules and regulations for the effective implementation of the decree. It is illegal to own or possess firearms, including their ammunitions, without license. A person with a license to possess firearm alone cannot carry or transport a firearm outside of his or her residence; he or she must additionally have a license to carry firearm.

The licenses to possess and carry firearms are issued now by the chief of the PNP. With respect to police and military personnel, their authority to possess and carry firearms are covered by mission orders, which are issued by their respective commanders or superiors as enumerated under the Implementing Rules and Regulations to PD 1866.

The Election Firearms Ban under Republic Act 7166When a statute defines the particular words and phrases it uses, the legislative definition controls the meaning of the statutory word, irrespective of any other meaning the word or phrase may have in its ordinary or usual sense; otherwise put, where a statute defines a word or phrase employed therein, the word or phrase should not, by construction, be given a different meaning; the legislature, in adopting a specific definition, is deemed to have restricted the meaning of the word within the terms of the definition.

Significantly, RA 7166 did not provide a statutory definition of the term “firearms.”  The absence of this statutory definition leads to the question of what the term “firearms” under RA 7166 exactly contemplates. Various rules of statutory construction may be used to consider this query.

First, the general rule in construing words and phrases used in a statute is that, in the absence of legislative intent to the contrary, they should be given their plain, ordinary and common usage meaning; the words should be read and considered in their natural, ordinary, commonly accepted usage, and without

resorting to forced or subtle construction.  Words are presumed to have been employed by the lawmaker in their ordinary and common use and acceptation.

Second, a word of general significance in a statute is to be taken in its ordinary and comprehensive sense, unless it is shown that the word is intended to be given a different or restricted meaning; what is generally spoken shall be generally understood and general words shall be understood in a general sense.

Third, a word of general signification employed in a statute should be construed, in the absence of legislative intent to the contrary; to comprehend not only peculiar conditions obtaining at the time of its enactment but those that may normally arise after its approval as well.  This rule of construction, known as progressive interpretation, extends by construction the application of a statute to all subjects or conditions within its general purpose or scope that come into existence subsequent to its passage, and thus keeps legislation from becoming ephemeral and transitory.

Fourth, as a general rule, words that have or have been used in a technical sense or those that have been judicially construed to have a certain meaning, should be interpreted according to the sense in which they have been previously used, although the sense may vary from the strict or literal meaning of the words; the presumption is that the language used in a statute, which has a technical or well-known legal meaning, is used in that sense by the legislature.

We cannot apply the first cited rule, under which a firearm could mean a weapon from which a shot is discharged by gunpowder – this is the common usage or acceptation of the term.  Specifically, we cannot apply the rule as there previously existed a more comprehensive definition of the term under our legal tradition, i.e., the definition originally provided under Act 1780 which Act 2711 substantially adopted.  Under this cited statutory definition, the term “firearms” may include any other weapon from which a bullet, ball or shot, shell or other missile may be discharged by means of gunpowder or other explosive.  Thus, a weapon not using the medium of gunpowder may also be considered a firearm.

Under the fourth rule above, the term “firearms” appears to have acquired a technical or well-known legal meaning.  The statutory definition (under Act 2711) included air rifles, except those with small caliber and limited range and used as toys, and that the barrel of any firearm shall be considered a complete

firearm for purposes of the law regulating the manufacture, use, possession and transport of firearms.

As our legal history or tradition on firearms shows, this old definition has not changed.  Thus, we can reasonably assume, in the absence of proof to the contrary, that when the legislature conceived of the election firearms ban, its understanding of the term “firearm” was in accordance with the definition provided under the then existing laws.

However, this old definition should not bar an understanding of “firearm” suggested by the third rule above – that RA 7166, as an act of Congress, is not intended to be short-lived or transitory; it applies not only to existing conditions, but also to future situations within its reasonable coverage.  Thus, the election firearms ban (RA 7166) applies as well to technological advances and developments in modern weaponry.

It is under this context that we can examine whether an airsoft gun can be considered a firearm.  As defined, airsoft guns are firearm replicas, often highly detailed, manufactured for recreational purposes.  Airsoft guns propel plastic 6mm and 8mm pellets at muzzle velocities ranging from 30 meters per second (m/s) to 180 m/s (100 feet per second [f/s] to 637ft/s) by way of compressed gas or a spring-driven piston.  Depending on the mechanism driving the pellet, an airsoft gun can be operated manually or cycled by either compressed gas such as Green Gas (propane), or CO2, a spring, or an electric motor. All pellets are ultimately fired from a piston compressing a pocket of air from behind the pellets.

Other than firearms discharged with the use of gunpowder, the law on firearms includes air rifles but subject to appropriate regulations that the proper authority may promulgate as regards their categorization, whether it is used as a toy. An air gun (e.g. air rifle or air pistol) is a rifle, pistol, or shotgun which fires projectiles by means of compressed air or other gas, in contrast to a firearm which burns a propellant. Most air guns use metallic projectiles as ammunition. Air guns that only use plastic projectiles are classified as airsoft guns.

An airsoft gun appears to operate on the same principle as air rifles – i.e., it uses compressed air – and could properly be considered to be within the coverage of an administrative determination of whether it could be considered a toy or a

firearm. From this perspective, airsoft guns can be considered a firearm subject to regulation by the proper authorities.

Thus, in Orceo v. Comelec, G.R. No. 190779 (March 26, 2010), the Supreme Court has upheld the resolution of the Commission on Elections in including airsoft guns during the election period gun ban. Furthermore, subject only to certain exceptions such as those involving police and military personnel on duty, the carrying or transport of firearms during election period is prohibited even by license holders.

Illegal Possession of FirearmsIllegal possession of firearms, or part of a firearm, is committed when the holder: (1) possesses a firearm or a part thereof; and (2) lacks the authority or license to possess the firearm. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession, but also constructive possession or the subjection of the thing to one’s control and management. Unlicensed firearms no longer simply mean a firearm without a license duly issued by lawful authority. The scope of the term was expanded in Section 5 of R.A. 8294:

Sec. 5. Coverage of the Term Unlicensed Firearm. — The term unlicensed firearm shall include:1) firearms with expired license; or2) unauthorized use of licensed firearm in the commission of the crime.Thus, the unauthorized use of a weapon which has been duly licensed in the name of the owner/possessor may still aggravate the resultant/crime. (People vs. Moliva, G.R. Nos. 115835-36, July22, 1998, 292 SCRA 742)

In crimes involving illegal possession of firearms or part of a firearm, the prosecution has the burden of proving the elements: illegal possession of firearms or part of a firearm, is committed when the holder thereof: (1) the existence of the subject firearm or possession of a firearm or a part thereof, (2) lacks the authority (i.e. permit to possess or carry the same outside his residence) or license to possess the firearm. The existence of the firearm can be established by testimony, even without presentation of the said firearm (People vs Orchuela, cited in the case of People vs. Narvasa, 298 SCRA 638 [1998]). In the said case quoted above, appellant Orchuela was convicted of qualified illegal

possession of firearms despite the fact that the firearm used was not presented as evidence. The existence of the weapon was deemed amply established by the testimony of an eyewitness that Orhuela was in possession of it and had used it to kill the victim. As to proof that appellants had no license or permit to possess the firearms in question, the said non-possession of license, can be proven by the testimony or the certification of a representative of the PNP Firearms and Explosive Unit that the accused was not a license of the firearm in question (People vs. Villanueva, cited in the case of People vs Narvasa, supra).

How and when liability for illegal possession of firearms attaches? The following discussion in People v. De Gracia, G.R. No. 102009-10, July 6, 1994, 233 SCRA 716  are instructive:

“The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one’s control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes, exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever.

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused.  Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.In the early case of People v. Estoista, 93 Phil. 647 (1953) we held that a temporary, incidental, casual, or harmless possession of firearms is not punishable.  We stated therein that: “The terms “control” and “dominion” themselves are relative terms not susceptible of exact definition, and opinions on the degree and character of control or dominion sufficient to constitute a violation vary.  The rule laid down in the United States courts – rule which we here adopt – is that temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of weapon.  A typical example of such possession is where “a person picks up a weapon or hands it to another to examine or hold for a moment.

Also, in People v. Remereta, 98 Phil. 413 (1956), where the question posed was whether an accused who stole a firearm could simultaneously be prosecuted for theft and illegal possession of firearms, we held that transient possession is not sufficient to convict one under the latter crime, thus:

“While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal possession of firearms is not committed by mere transient possession of the weapon.  x x x Thus, stealing a firearm with intent not to use but to render the owner defenseless, may suffice for purposes of

establishing a case of theft, but would not justify a charge for illegal possession of firearm, since intent to hold and eventually use the weapon would be lacking.”

Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same (People v. Soyang, L-13983, December 31, 1960). It is not enough that the firearm was found in the person of the accused who held the same temporarily and casually or for the purpose of surrendering the same.  Admittedly, animus possidendi is a state of mind.  As such, what goes on into the mind of an accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession.

Thus, in People v. Leo Lian, People v. Leo Lian, G. R. No. 115988, March 29, 1996, we rejected the argument of the accused that the charge against him should be dismissed because there was no animus possidendi on his part.  In said case, the accused contended that he was on his way to the municipal hall to surrender the firearm when he met some of his friends.  He then forgot about the firearm, until the police officer unceremoniously seized the same from him, affording him no chance to surrender it himself.

In rejecting accused-appellant’s claim, Justice Regalado wrote that:

“x x x, the Court finds it hard to believe that appellant still had to hide the firearm in his waist before setting out to surrender it to the authorities when he could have taken the gun to the town hall in the same bag in which he found it, in which case it would have been safer and would have avoided detection.  In fine, the indispensable elements of possession without the necessary authority or license and the corresponding attendance of animus possidendi have both been convincingly established by the prosecution to warrant appellant’s conviction x x x.”

That animus possidendi is determinable from the prior and simultaneous acts of the accused is further exemplified by People v. Lubo, et al., 101 Phil. 180, 183 (1957). In this case, while accused-appellant pleaded lack of animus possidendi, his conduct belied the same.  Accused-appellant Lubo was found to have secured a “temporary license” for the subject firearm.  Under such

circumstance, we held that accused-appellant intended to possess the subject firearm beyond reasonable doubt.” 

Penalty for Illegal Possession of FirearmsRepublic Act No. 8294, approved on June 6, 1997, has lowered the penalties for illegal possession of firearms and bases the penalty imposable on whether the involved firearm is high or low powered.

Section 1. Unlawful Manufacture, Sale, Acquisition, Dispositions, or Possession of Firearms or Ammunition or Instrument Used or Intended to be used in the Manufacture of Firearms or Ammunitions. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00)  shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or.32 and other firearm of similar fire power, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition; Provided that no other crime is committed.  The penalty of prision mayor in its minimum period and a fine of Thirty Thousand Pesos (P30,000.00) shall be imposed if the firearm is classified as high-powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, that no other crime was committed  by the person arrested.  If homicide or murder is committed with the use of an unlicensed firearm such use of an unlicensed firearm shall be considered as an aggravating circumstance.

Commission of Illegal Possession of Firearms with Other CrimesIn People v. Ladjaalam, G.R. Nos. 136149-51 (September 19, 2000), interpreting Section 1 of RA 8294, the Supreme Court ruled that a person in possession of an unlicensed firearm who committed another crime cannot be prosecuted for simple illegal possession of firearms. If the other crime committed is murder or homicide, the use of unlicensed firearm will merely serve as an aggravating circumstance for the crime (the penalty will be increased); if the unlicensed firearm is used in connection with rebellion, sedition, insurrection or attempted coup de ‘etat, the same will be absorbed or become an element of these crimes; and for any other crime, the accused will be prosecuted only for the committed crime without any effect for the unlicensed firearm. In other words, in all of the foregoing cases, the accused person cannot be separately charged with illegal possession of firearms.

Other illustrative cases

1. In the case of People vs. Cerdado, G.R. Nos. 134072-73, June 10, 2002, 383 SCRA 296, the Supreme Court ruled:  In the case at bar, although the prosecution was able to establish that the crime of illegal possession of firearm under P.D. No. 1866 had been committed by the accused-appellant, R.A. 8294 merely considers the use of an unlicensed firearm as a special aggravating circumstance in murder or homicide, and not as a separate offense. Fortunately, for the accused appellant, the use of an unlicensed firearm in the killing of the victim was not alleged in the information for murder. Such being the case, the same could not be used as an aggravating circumstance to warrant the imposition of the death penalty against the accused-appellant.  It was likewise held that Section 1 of R.A. 8294 further amended Section 1 of P.D. No.1866 which in part, provides: If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Under the above-quoted section, where murder or homicide is committed with the use of an unlicensed firearm, the separate penalty for illegal possession of firearm shall no longer be meted out since it becomes merely a special aggravating circumstance. The penalty for illegal possession of firearms shall be imposed in all other cases where none of the crimes enumerated under R.A. No. 8294 is committed. The intent of the Congress is to treat the offense of illegal possession of firearm and the commission of homicide or murder with the use of unlicensed firearms as single offense. (Ibid)

2. In another case People of the Philippines vs. Oscar Perez, G.R. No. 134485, October 23, 2003, 414 SCRA 107, the Highest Tribunal held:  The appellants use of a firearm to consummate the crime cannot likewise be considered as a special aggravating circumstance because there was no allegation in the information that the appellant had no license to possess the same, as mandated by Section 9, Rule 110 of the Rules of Criminal procedure. The lack of a license to possess firearm is an essential element of the crime of violation of P.D. No. 1866 as amended by R.A. 8294, whether as an independent crime or as an aggravating circumstance in murder or homicide. Hence, such circumstance cannot aggravate the crime of murder and the penalty therefore; otherwise, the appellant would be deprived of his right to be informed of the nature of the charge against him. Although the crime was committed before the effectivity of the said Rule, the same should be applied retroactively as it would be favorable to the appellant.

3.  Still in one case, People vs. Almeida, G.R. No. 146107-09, December 11, 2003, 418 SCRA 254, Highest Court of the land pronounced: The court however, cannot sustain appellant conviction for illegal possession of ammunition. The ammunition was not found in the person of the appellant. They were among the items seen lying on the floor and Vanessa and Gilbert were in that same room with the appellant. Clearly, the evidence is insufficient to establish that said ammunition belongs to appellant as it could have belonged to the other two people. Furthermore in any event, the court has ruled in previous cases that in view of the enactment of R.A. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drug.

4. Still in another case,  People vs. Ignas, G.R. Nos. 140514-15, September 30, 2003, 412 SCRA 311, it was held:  We find merit in the appellants contentions. It is not enough that the special aggravating circumstance of use of unlicensed firearm be alleged in the information, the matter must be proven with the same quantum of proof as the killing itself. Thus, the prosecutor must prove: (1) the existence of the subject firearm; and (2) the fact the accused that owned or possessed it does not have the corresponding license or permit to own or possess the same. The records do not show that the prosecution presented any evidence to prove that appellant is not a licensed holder of a caliber .38 firearms. The prosecution failed to offer in evidence a certification from the Philippine National Police Firearms and Explosive Division to show that appellant had no permit or license to own or possess a .38 caliber handgun. Nor did it present the responsible police officer on the matter of licensing as a prosecution witness. Absent the proper evidentiary proof, this court cannot validly declare that the special aggravating circumstance of use of unlicensed firearm was satisfactorily established by the prosecution. Hence, such special circumstance cannot be considered for purposes of imposing the penalty in its maximum period.

5. The case of People vs. Balleras, G.R. No. 134564, June 26, 2002, 383 SCRA 429, revealed that: There is no basis for considering the use of an unlicensed firearm as an aggravating circumstance. First, the subject firearm was not recovered. Second, R.A. No. 8294 cited by the trial court which provides that if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance has no application to this case. The said law took effect on July 6, 1997, after the instant, crime was committed.

6. People vs. Feloteo, G.R. No. 124212, September  17, 1998, 295 SCRA 607, reiterated the doctrine in People vs. Moliva, supra, which reads:   In case homicide or murder is committed with the use of unlicensed firearm, such use shall be considered merely as an aggravating circumstance. Clearly, the penalty for illegal possession of high powered firearm is prision mayor in its minimum period and a fine of P30, 000.00.  The Supreme Court further rendered judgment to wit: The enactment of R.A. No. 8294 can be given retroactive effect as it favors the appellant.

A Foreigner Cannot be In Possession of A FirearmPursuant to Standard Operating Procedure No. 13 entitled ”Licensing of Firearms” revised October 08, 2008, only a Filipino Citizen and at a legal age of Twenty One (21) years old can possess a firearm here in the Philippines. Furthermore, owning a firearm is not a constitutional right but a mere statutory privilege granted to those qualified individuals.

Right to bear arms: Constitutional or Statutory?In CHAVEZ vs. ROMULO, et. al., G.R. No. 157036, June 9, 2004, the bearing of arms is a tradition deeply rooted in the English and American society. It antedates not only the American Constitution but also the discovery of firearms. A provision commonly invoked by the American people to justify their possession of firearms is the Second Amendment of the Constitution of the United States of America, which reads:

“A well regulated militia, being necessary for the security of free state, the right of the people to keep and bear Arms, shall not be infringed.”An examination of the historical background of the foregoing provision shows that it pertains to the citizens’ “collective right” to take arms in defense of the State, not to the citizens’ “individual right” to own and possess arms. The setting under which the right was contemplated has a profound connection with the keeping and maintenance of a militia or an armed citizenry. That this is how the right was construed is evident in early American cases.

The first case involving the interpretation of the Second Amendment that reached the United States Supreme Court is United States vs. Miller. Here, the indictment charged the defendants with transporting an unregistered “Stevens shotgun” without the required stamped written order, contrary to the National Firearms Act. The defendants filed a demurrer challenging the facial validity of

the indictment on the ground that the National Firearms Act offends the inhibition of the Second Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal, the Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the collective right of those comprising the Militia – a body of citizens enrolled for military discipline. It does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

The same doctrine was re-echoed in Cases vs. United States. Here, the Circuit Court of Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the Second Amendment. It ruled that:

“While [appellant’s] weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second amendment was designed to foster as necessary to the security of a free state.”

With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon the American people the right to bear arms. In a more explicit language, the United States vs. Cruikshank decreed: “The right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any way dependent upon that instrument.” Likewise, in People vs. Persce, the Court of Appeals said: “Neither is there any constitutional provision securing

the right to bear arms which prohibits legislation with reference to such weapons as are specifically before us for consideration. The provision in the Constitution of the United States that the right of the people to keep and bear arms shall not be infringed is not designed to control legislation by the state.”

With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Philippine Constitution. Our Constitution contains no provision similar to the Second Amendment, as we aptly observed in the early case of United States vs. Villareal:

“The only contention of counsel which would appear to necessitate comment is the claim that the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the use of firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill of Rights.

This does not expressly rely upon the prohibition in the United States Constitution against the infringement of the right of the people of the United States to keep and bear arms (U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But it may be well, in passing, to point out that in no event could this constitutional guaranty have any bearing on the case at bar, not only because it has not been expressly extended to the Philippine Islands, but also because it has been uniformly held that both this and similar provisions in State constitutions apply only to arms used in civilized warfare (see cases cited in 40 Cyc., 853, note 18); x x x.”

Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation. What then are the laws that grant such right to the Filipinos? The first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12, 1907. It was passed to regulate the importation, acquisition, possession, use and transfer of firearms. Section 9 thereof provides:

“SECTION 9. Any person desiring to possess one or more firearms for personal protection, or for use in hunting or other lawful purposes only, and ammunition therefor, shall make application for a license to possess such firearm or firearms or ammunition as hereinafter provided. Upon making such application, and before receiving the license, the applicant shall make a cash deposit in the

postal savings bank in the sum of one hundred pesos for each firearm for which the license is to be issued, or in lieu thereof he may give a bond in such form as the Governor-General may prescribe, payable to the Government of the Philippine Islands, in the sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly formed and organized at the time of the passage of this Act, who at such time have a license to possess firearms, shall not be required to make the deposit or give the bond prescribed by this section, and the bond duly executed by such person in accordance with existing law shall continue to be security for the safekeeping of such arms.”The foregoing provision was restated in Section 887 of Act No. 2711 that integrated the firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory creation, the right to bear arms cannot be considered an inalienable or absolute right.

Illegal Discharge of Firearms In PEOPLE vs. DADO, G.R. No. 131421 November 18, 2002

“Nevertheless, petitioner is not completely without liability. The Court sustains the finding of the trial court that petitioner fired his .45 caliber pistol towards the victim. From the attendant circumstances, it appears that there is no evidence tending to prove that petitioner had animus interficendi or intent to kill the victim. Note that the prosecution witnesses did not see whether petitioner aimed to kill the victim. Intent to kill cannot be automatically drawn from the mere fact that the use of firearms is dangerous to life. Animus interficendi must be established with the same degree of certainty as is required of the other elements of the crime. The inference of intent to kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond reasonable doubt.Absent an intent to kill in firing the gun towards the victim, petitioner should be held liable for the crime of illegal discharge of firearm under Article 254 of the Revised Penal Code.

X X X Art. 254. Discharge of firearms. — Any person who shall shoot at another with any firearm shall suffer the penalty of prision correccional in its minimum and medium periods, unless the facts of the case are such that the act can be

held to constitute frustrated or attempted parricide, murder, homicide or any other crime for which a higher penalty is prescribed by any of the articles of this Code. X X X (Reyes, The Revised Penal Code, vol. 2, 1993 ed., p. 441)

The elements of this crime are: (1) that the offender discharges a firearm against or at another person; and (2) that the offender has no intention to kill that person. Though the information charged the petitioner with murder, he could be validly convicted of illegal discharge of firearm, an offense which is necessarily included in the crime of unlawful killing of a person.  Under Rule 120, Section 4, of the Revised Rules on Criminal Procedure, when there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or the offense charged which is included in the offense proved.

Pursuant to Article 254 of the Revised Penal Code, illegal discharge of firearm is punishable with prision correccional in its minimum and medium periods There being no modifying circumstances and applying the Indeterminate Sentence Law, petitioner should be sentenced to suffer the penalty of six (6) months of arresto mayor, as minimum to two (2) years and eleven (11) months of prision correccional, as maximum.”